United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING MOTION UNDER 28 U.S.C.
F. Cox U.S. District Judge
matter is currently before the Court on Defendant/Petitioner
Desmond Johnson's pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Petitioner bases his motion on
Johnson v. United States, 135 S.Ct. 2551 (2015),
wherein the United States Supreme Court held that the
residual clause of the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The
Government has responded in opposition to the motion.
did not file a reply and the time permitted for doing so,
which was extended by the Court, has passed. The motion is
now ripe for a decision by the Court. For the reasons set
forth below, the Court shall DENY the motion.
Criminal Case Number 16-12414, Petitioner pleaded guilty to
two counts of interference with commerce by threats of
violence, in violation of 18 U.S.C. § 1951 (Counts 1 and
3 of the Amended Indictment), and brandishing a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1) (Count 4). (See 2/3/14
Judgment, Docket Entry No. 38). This Court sentenced
Petitioner to 51 months of imprisonment on each of Counts 1
and 3, to run concurrently, and to 81 months of imprisonment
on Count 4, to run consecutively to sentence imposed on
Counts 1 and 3.
did not file a direct appeal.
pro se, on June 22, 2016, Petitioner filed a Motion
to Vacate Sentence, pursuant to 28 U.S.C. § 2255.
(Docket Entry No. 40).
Government filed a brief in opposition to the motion on
September 23, 2016. Although the Court granted
Petitioner's request for an extension of time to file a
reply brief, that extension has passed and Petitioner did not
file a reply brief.
responding to Petitioner's § 2255 Motion, the
Government asserts that the motion must be denied for several
reasons. First, the Government asserts that the motion is
untimely. The Government also asserts that the motion fails
on the merits.
threshold matter, the Court agrees with the Government that
Petitioner's § 2255 motion is untimely.
one-year statute of limitations applies to petitions under
§ 2255. 28 U.S.C. § 2255. That one-year period
begins to run from the latest of several events, the relevant
one here being “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(1). A
conviction becomes final upon the conclusion of direct
review. Sanchez-Castellano v. United States, 358
F.3d 424, 426 (6th Cir. 2004). Where, as here, “a
federal criminal defendant does not appeal to the court of
appeals, the judgment becomes final upon the expiration of
the period in which the defendant could have appealed to the
court of appeals, even no notice of appeal was filed.”
Id. at 427. However, in cases where “excusable
neglect or good cause” is shown, the district court may
extend the appeal time an additional thirty days.
the Court were to give Petitioner an additional thirty days,
however, his motion would still be untimely. Petitioner was
sentenced on February 3, 2014 and he did not appeal within
the 14-day period provided under Fed. R. App. P. 4(b)(1)(A).
With an additional thirty days, Petitioner's conviction
would have become final on March 19, 2014. Petitioner then
would have had one year from that date, or until March 20,
2015, to file his motion. But Petitioner did not file his
motion until June 22, 2016.
as the Government explains in its response, Johnson
is not retroactive on collateral review in cases involving ...